FILED

July 2, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9706-CC-00221

)

Appellee, )

)

) WARREN COUNTY

VS. )

) HON. CHARLES D. HASTON

LAWRENCE RALPH, JR., ) JUDGE

)

Appellant. ) (Burglary of Autom obile, Theft,

) DUI, etc.)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF WARREN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

AUBREY L. HARPER JOHN KNOX WALKUP

114 North College Street Attorney General and Reporter

P.O. Box 588

McMinnville, TN 37111-0588 JANIS L. TURNER

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

WILLIAM LOCKE

District Attorney General

Professional Building

McMinnville, TN 37110

OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART

DAVID H. WELLES, JUDGE
1

 Tenn. Code Ann. §§ 39-14-402(a)(4); 39-14-103; 55-8-132; 39-16-603; 39-16-602; 55-50-504;

55-10-616; 55-10-401.

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OPINION

The Defendant, Lawrence “Gomer” Ralph, Jr., appeals as of right pursuant

to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted on

a Warren County jury verdict of burglary of an automobile, theft over $1,000,

failure to yield to emergency lights, evading arrest, resisting arrest, violation of his

habitual traffic offender status, and seventh-offense DUI. 1

 He was sentenced as

a multiple Range II offender to four years for burglary of an automobile, seven

years for theft over $1,000, and four years for the habitual traffic offender

violation. For the misdemeanor offenses, he was sentenced to thirty days in the

county jail for failure to yield to emergency lights, nine months at 75% for evading

arrest, four months at 75% for resisting arrest, and three hundred days for DUI.

The sentences for theft over $1,000, failure to yield, and resisting arrest were

ordered to be served concurrent to each other but consecutive to the other

sentences, all of which were ordered to run consecutive to each other for an

effective sentence of sixteen years and eight months. 

The Defendant appeals his convictions and sentences and argues (1) that

he was brought before the prospective jurors prior to jury selection while wearing

shackles and that this prejudiced him; (2) that the trial court erred by ordering

consecutive sentences; and (3) that the trial court erred in classifying him as a

Range II offender. W e affirm in part and reverse in part the judgment of the trial

court.
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At the time of the offense, the Defendant was a resident of McMinnville,

Tennessee. His father, Curly Ferrell, ran a pool hall on Main Street in

McMinnville. The victim in this case, A.P. Ikeard, began to visit the pool hall a

few days before the offense occurred on November 2, 1994. The victim testified

that he had been retired since 1984 and that he was learning to play pool. On

the morning of November 2, the victim went to the pool hall at approximately 7:00

a.m. The victim had seen the Defendant at the pool hall and knew that he was

Ferrell’s son. That morning, the Defendant asked the victim to give him a ride to

a relative’s house to cut timber. The victim owned a 1984 Ford LTD that he

stated was in good condition and worth $2,500. The victim did not recall ever

taking the Defendant anywhere prior to the time in question. Fred Thomas rode

with them that morning.

The victim took the Defendant to the relative’s house and stayed during the

day. Several other persons were present to cut the timber, but the victim did not

participate. The victim smelled alcohol on the Defendant but did not see him

drinking. The victim, the Defendant, and Thomas returned to the pool hall at

around 11:00 or 11:30 a.m. Later that day, Stanton Minton, the victim’s neighbor,

came to the pool hall and asked the victim to ride with him to look at some

dogwood trees. The victim left his car behind the pool hall and he hid his keys

under the driver’s seat. Minton suggested that he remove the distributor wire to

prevent anyone from taking the vehicle. The victim took the wire and put it in his

pocket. They left at approximately 4:00 p.m. and returned at approximately 11:00

p.m. They had driven around the area and to the town of Viola. The victim

denied that he had been drinking that night. 
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The victim and Minton returned to the victim’s home because they agreed

to retrieve his car the next morning. Someone told him that his car had been

stolen, and he filed a complaint at the Warren County Jail. The victim went to

see his car at Woodlee’s Garage the next day and noticed several beer cans in

the vehicle. The car had sustained damage estimated at $1,500. The victim

never gave the Defendant permission to use his car.

On the evening of Novem ber 2, 1994, at approximately 9:30 p.m., Officer

Chuck Taylor of the McMinnville Police Department observed a blue 1984 Ford

LTD at the intersection of Locust Street and Spring Street. When the officer

noticed that the car ran a stop sign and made a wide, sweeping turn onto Spring

Street, he began to follow the vehicle. The car was on the wrong side of the road

momentarily, but the occupant continued to drive and stopped at two traffic lights.

The officer observed one person in the car. The vehicle pulled over at the pool

hall. The officer activated his emergency lights and the car sped away. The

officer pursued the vehicle at speeds exceeding ninety miles per hour. The car

was again driven on the wrong side of the road and without lights. When the car

reached the intersection of highways 127 and 8, the driver braked hard in an

attempt to make a turn. The driver lost control and the car slammed into a

guardrail. When the car stopped, the officer pulled alongside and recognized the

driver as the Defendant. 

The Defendant jumped out of the car and ran along the guardrail, jumped

the guardrail, and ran into the bushes. Officer Todd Bess ran after the Defendant

and shouted for him to stop. The Defendant eventually fell down and Officer

Bess caught him. The Defendant struggled when Bess tried to handcuff him. An
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off-duty officer, Tony Taylor, who was riding with Bess, administered pepper gas

spray to subdue the Defendant. He was handcuffed and brought back to the

patrol cars. The Defendant smelled of alcohol, appeared unsteady on his feet,

and would not perform any field sobriety tests. Officers found six empty beer

cans in the car. The Defendant refused to take an intoximeter test at the Warren

County Jail.

The Defendant was indicted for burglary of an automobile, theft over

$1,000, failure to yield to emergency lights, evading arrest, resisting arrest,

violation of his habitual traffic offender status, DUI, and driving on a revoked

license. The charge of driving on a revoked license was dismissed and the

Defendant was convicted by a jury of the remaining offenses. He now appeals

his convictions and sentences.

I. VIOLATION OF RIGHT TO A FAIR TRIAL

As his first issue, the Defendant argues that he was brought in front of the

jury venire prior to jury selection wearing shackles, preventing him from receiving

a fair trial. The record of the proceedings indicates nothing regarding the

Defendant wearing shackles. No objections by the Defendant are found and the

record contains no other evidence at all relating to the Defendant’s claim. The

trial transcript reveals no evidence of shackling, nor do we have before us the

Defendant’s Motion for New Trial. Failure to make a contemporaneous objection

waives consideration by this court of the issue on appeal. See Tenn. R. App. P.

36(a); State v. Killebrew, 760 S.W .2d 228, 235 (Tenn. Crim. App.), perm to

appeal denied (Tenn. 1988). Without a record below which contains evidence
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that an issue exists, we have nothing to review on appeal. Therefore, this issue

has been waived.

II. IMPROPER SENTENCING

Next, the Defendant argues that the trial court erred in sentencing him as

a multiple offender and ordering that the sentences be served consecutively. The

State correctly points out that the only pieces of evidence in the record regarding

sentencing are the judgment of the trial court and the notices submitted by the

State. The transcript of the sentencing hearing is not in the record before us.

It is the duty of an appellant to prepare an adequate record to allow a

meaningful review on appeal. Tenn. R. App. P. 24(b); State v. Ballard, 855

S.W.2d 557, 560-61 (Tenn. 1993); State v. Roberts, 755 S.W.2d 833, 836 (Tenn.

Crim. App. 1988); State v. Bunch, 646 S.W.2d 158, 160 (Tenn.1983). Given the

absence of the transcript of the sentencing hearing from the record, we must

presume the trial court’s findings with respect to the transcript are correct. State

v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993); State v. Boling,

840 S.W.2d 944, 951 (Tenn. Crim. App. 1992). Because we cannot adequately

review the sentencing procedure, this issue has been waived.

III. PLAIN ERROR

This Court is authorized, in its discretion, to consider issues not properly

presented for review “(1) to prevent needless litigation, (2) to prevent injury to the

interests of the public, and (3) to prevent prejudice to the judicial process.” 

Tenn. R. App. P. 13(b). 
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Although the Defendant cannot prevail on the two issues he brought before

this Court, it has become evident that plain error exists in the record. Plain error

may be addressed by an appellate court even when not raised in a motion for

new trial. State v. Ogle, 666 S.W.2d 58 (Tenn. 1984). The Tennessee Rules of

Criminal Procedure provide, in pertinent part, the following:

An error which has affected the substantial rights of an accused may

be noticed at any time, even though not raised in the motion for a

new trial or assigned as error on appeal, in the discretion of the

appellate court where necessary to do substantial justice. 

Tenn. R. Crim. P. 52(b).

A substantial right is one of fundamental proportions which is constitutional

in nature. See State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994).

An error may be recognized as “plain” if it seriously affects the fairness of a

judicial proceeding. Id. We believe it is necessary to address an error in this

case in order to do substantial justice. Because we believe prosecution of the

Defendant for burglary and theft of the same automobile offends notions of due

process in this particular case, we are compelled to reverse the Defendant’s

conviction for burglary. 

In 1991 our supreme court held that due process precludes conviction for

kidnapping where the detention of the victim occurs as merely incidental to the

commission of another felony such as robbery or rape. State v. Anthony, 817

S.W.2d 299, 300 (Tenn. 1991). In support of its holding, the Anthony court noted

that “every robbery, by definition, involves some detention against the will of the

victim.” Id. at 306. The court announced that the appropriate test to determine

when multiple convictions offend due process in a kidnapping and robbery case
2

In making this assertion, we note the broa d legislative definition of “enter” as including “[i]ntrusion

of any part of the body” and “[i]ntrusion of any object in physical contact with the body or any object

controlled by remote control, electronic or otherwise.” Tenn. Code Ann . § 39-14-402(b)(1)-(2).

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is “whether the confinement, movement, or detention is essentially incidental to

the accompanying felony and is not, therefore, sufficient to support a separate

conviction for kidnapping, or whether it is significant enough, in and of itself, to

warrant independent prosecution and is, therefore, sufficient to support such a

conviction.” Id.; see State v. Dixon, 957 S.W .2d 532, 534 (Tenn. 1997); State v.

Coleman, 865 S.W.2d 455, 457 (Tenn. 1993); State v. Binion, 947 S.W.2d 867,

872-73 (Tenn. Crim. App. 1996). 

In Anthony, the court indicated that a due process review necessarily

includes an analysis of the criminal statutes involved and legislative intent. “In

examining these general guidelines, it must be remembered that individual cases

are sometimes dependent upon the wording of the particular statutes being

construed, and upon the clarity of . . . legislative intent.” Anthony, 817 S.W.2d at

306. It would be difficult, although not impossible, to steal a car without in some

manner entering at least som e portion of the car.2

 In the case sub judice, we do

not believe that the legislature intended that stealing this car would constitute two

crimes—burglary and theft.

This Court has applied the Anthony analysis to a case involving burglary

of an automobile and attem pted theft. State v. Roberts, 943 S.W.2d 403, 406-07

(Tenn. Crim. App. 1996). In Roberts we noted that not every attempted theft of

a vehicle includes, by definition, a burglary of that vehicle; and therefore

Anthony is “not strictly applicable” to a defendant so charged. Id. at 406.

However, we concluded in Roberts that “the due process concerns underlying the
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holding of Anthony mandate[d] a similar result.” Id. Roberts is controlling upon

this case, notwithstanding the fact that here the Court considers convictions of

burglary and theft, rather than attempted theft. 

In Roberts, we stated,

If, for example, the State has alleged and shown that the defendant

entered each vehicle with the intent to commit some felony, theft, or

assault other than to steal the vehicle, such as to steal the radio or

other articles from within, and then attempted to steal the vehicle,

then those alleged facts would likely require a different result from

the one we reach here. However, here the acts of entry into the

vehicles as alleged and proven by the State are merely an essential

and incidental step in the attempted theft of the vehicles themselves.

The act of breaking into the vehicles is not significant enough, in and

of itself, to warrant independent prosecution where the defendant is

also convicted of attempted theft. . . . [U]nder the facts . . .

convictions for both burglary and attempted theft violate the

principles of Anthony.

Id. at 407. 

In the case at bar, the Defendant’s entry into the victim’s vehicle was

necessary to achieve the theft of the car. There is no evidence of a separate

intent to steal any items from inside the vehicle, nor is there evidence that some

other felony was intended or that items were in fact taken from the vehicle.

Under these facts, the burglary of the automobile, without more, was essentially

incidental to the theft and “part and parcel of that offense.” See Anthony, 817

S.W.2d at 307. Therefore, we conclude that the Defendant’s right to due process

of law as expressed in Anthony and applied in Roberts require reversal of his

conviction for burglary. 
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The Defendant’s conviction for burglary is reversed and vacated. In all

other respects the judgment is affirmed. This case is remanded to the trial court

for the purpose of entering a judgment consistent with this opinion.

________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOSEPH M. TIPTON, JUDGE

___________________________________

JOE G. RILEY, JUDGE